The Unz Review: An Alternative Media Selection
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 BlogviewAndrew Napolitano Archive
Can the FBI Investigate the President?
🔊 Listen RSS
Email This Page to Someone

 Remember My Information


Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New ReplyRead More
ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
These buttons register your public Agreement, Disagreement, Thanks, LOL, or Troll with the selected comment. They are ONLY available to recent, frequent commenters who have saved their Name+Email using the 'Remember My Information' checkbox, and may also ONLY be used three times during any eight hour period.
Ignore Commenter Follow Commenter
Search Text Case Sensitive  Exact Words  Include Comments
List of Bookmarks

Last weekend, The New York Times reported that senior FBI officials were so concerned about whatever President Donald Trump’s true motivation for firing FBI Director James Comey was that they immediately initiated a counterintelligence investigation of the president himself.

The Times reported that these officials believed that Trump may have intentionally or unwittingly played into the Kremlin’s hands by firing Comey so as to impair the FBI investigation into what efforts, if any, Russian intelligence personnel undertook in attempting to influence the 2016 presidential election and what role, if any, the Trump campaign played in facilitating those efforts.

Trump gave three public reasons for firing Comey. He told Comey he was fired because he had dropped the ball in the FBI investigation of Hillary Clinton’s use of private servers for her official work as secretary of state by declaring publicly that Clinton would not be prosecuted. He told his Twitter followers that he fired Comey because Comey’s a “total sleaze.”

And he told Lester Holt of NBC News that he fired Comey because he would not shut down the FBI investigation into the Russian behavior during the 2016 campaign and would not drop the prosecution of his former national security adviser, retired Lt. Gen. Michael Flynn. It is the reasons he gave to Holt that, according to the Times piece, impelled senior FBI officials to believe that the president himself might be a national security risk.

Can the FBI investigate the president? In a word: Yes. Here is the back story.

The FBI conducts generally two types of investigations — criminal and counterintelligence. Criminal investigations are intended to find the people who have already committed particular crimes, with agents lawfully and constitutionally gathering evidence against them under the supervision of a federal prosecutor and in conjunction with a federal grand jury.

A counterintelligence investigation is aimed at shoring up national security by looking at people who may be breaching it. This type of investigation often involves surveillance of the suspected people. A national security breach is any event — criminal or not — that may have enabled foreign enemies to acquire classified secrets or influence government decisions.

The origins of criminal and counterintelligence investigations are often murky and at times inscrutable. There are two legal standards for commencing any investigation of anyone. The first is “articulable suspicion.” That is a low standard that requires no hard proof of criminal behavior or national security breaches, but it is generally understood to mean that there are reasons that can be stated for employing government assets to investigate a person’s behavior and that the reasons are rational and consistent with similarly situated investigations.


The other requirement is that the articulable suspicion be accepted by a prosecutor, as the FBI alone cannot commence any investigation. Of course, FBI agents can chase a kidnapper without getting a prosecutor’s approval. But in a white-collar case — when the target of the investigation does not present an immediate danger to the public and the evidence of the target’s criminality or interaction with foreign governments is not generally known — FBI agents must present the reasons for the commencement of their investigation to prosecutors, who may approve and authorize or decline and reject the investigation.

In the case of any FBI-harbored articulable suspicion about the president of the United States — for criminal or counterintelligence matters — my own view is that the Times story is probably accurate. If so, only Deputy Attorney General Rod Rosenstein could have authorized this counterintelligence investigation of Trump.

Whatever this investigation was — and for whatever purposes it was commenced — it was relatively short-lived in the hands of those FBI officials who suspected Trump’s motivations. That’s because Trump fired Comey on May 9, 2017, and Rosenstein appointed Robert Mueller as special counsel to conduct an independent investigation of alleged Russian influence in the campaign and any Trump campaign compliance just eight days later, on May 17, 2017.

At that moment in time, Mueller and his team assumed whatever investigation the FBI and Rosenstein had commenced of Trump and the then-1-year-old investigation of the Russians and the Trump campaign that had begun in the Obama administration.

At the same time this was going on, the FBI secured surveillance warrants of various Trump campaign officials from the Foreign Intelligence Surveillance Court. This use of the Foreign Intelligence Surveillance Act — which theoretically is limited to counterintelligence investigations of foreign agents in the United States — constituted an end run around the Fourth Amendment.

Stated differently, the Fourth Amendment requires probable cause of crime in order to obtain a surveillance warrant, but FISA only requires probable cause of communicating with a foreign person in order to get the same warrant.
Why should anyone care about this? The dual purpose of the Fourth Amendment is to protect personal privacy in persons, houses, papers and effects, as well as to compel law enforcement to focus only on those people as to whom it has probable cause of guilt. When the feds can bypass these profound requirements, they are violating and rejecting the dual purpose of the amendment, which they have sworn to uphold.

FISA warrants are general warrants. General warrants basically authorize the bearer to search where he wishes and seize what he finds. One FISA warrant authorized surveillance of all 115 million Verizon customers. General warrants were the totalitarian practice of British officials in Colonial America, and the Fourth Amendment was enacted expressly to prevent them.

Trump is correct when he argues that FISA has corrupted and seduced some FBI officials and agents into violating the Constitution — yet they keep getting away with it. The insatiable appetite of government officials to spy in violation of the Constitution has infected the rule of law. If they can do this to the president, they can do it to anyone.

Copyright 2019 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, FBI, Russiagate 
Hide 11 CommentsLeave a Comment
Commenters to FollowEndorsed Only
Trim Comments?
  1. Rational says:


    The FBI is 100 years behind and they have 1000’s of other very serious cases they must investigate before they can “investigate” the trivial allegations against Trump.


    Death of Vince Foster and 10 other people under Bill Clinton.
    Hillary’s email scandal.
    Fast and Furious
    Obama’s birth certificate.
    911 allegedly and inside job.
    USS Liberty, etc. etc. etc.

  2. anonymous[340] • Disclaimer says:

    Several other commenters and I have noted that since about November 2017, Mr. Napolitano has been dissembling and otherwise propagandizing for the Establishment on RussiaGate. He has emerged as a sycophant of its priestly (lawyer) class, tongue-bathing his “feds,” especially the “no-nonsense” Mr. Mueller. A predominant theme is that, while individuals within “Judge’s” hallowed DOJ may color outside the lines from time to time, the Rule of Law in the hands of this higher order of the ruling class will be impartial, so we should lower our heads and reverently allow it to work.

    Two observations about this column:

    1. Note carefully this sentence: “A national security breach is any event — criminal or not — that may have enabled foreign enemies to acquire classified secrets or influence government decisions.” Left begging are the questions of (i) who is or isn’t a “foreign enemy” and (ii) what constitutes the “influence [of] government decisions.” But those familiar with Mr. Napolitano’s last 14 months of columns know that he believes this includes someone in Russia entering via the Internet “American marketplaces of ideas.” Not only does this “Freedom Watcher” endorse an iron curtain for the Internet, he has suggested that someone in Nebraska reading any such verboten stuff and discussing it in the social hall after church could be criminally charged, too. In Mr. Napolitano’s USA, no one is beyond the legitimate reach of the State’s police in criminalizing fraternization with “foreign enemies.”

    2. Mr. Napolitano again turns his kaleidoscope to now justify Mr. Mueller’s efforts as the handoff of a justifiable, week-old FBI investigation prompted by statements to Lester Holt into President Trump’s motives for firing that agency’s head. This conveniently washes away the stains of earlier FISA abuses that “Judge” — being such a brave civil libertarian — can then piously condemn. When his narrative requires, readers are told that the investigation specialties are Russian influence, obstruction of justice, lying to the investigators and other process crimes, whatever — but whatever turns up can and must be used, under the Rule of Law, to smite anyone plausibly tied to “foreign enemies.”

    Does anyone here still trust this columnist? If you doubt that he has become a Beltway cutout, you can easily go look for yourself: use the search tool here at Unz and read his last column using the word “Binney.” He has gone from RussiaGate skeptic to a tool of the Establishment that needs “foreign enemies” to keep Americans duped.

    • Agree: Bubba
  3. “If they can do this to the president, they can do it to anyone.”

    One should consider the FBI’s behavior since their inception, especially what occurred during the 1950 – through the seventies regarding political and social agendas and conclude —

    — no kidding the FBI did, does, and will do the above to anyone.

  4. @anonymous

    Excellent remarks. You know the law better, and said it much better than I could have.

    It seems as though Judge Nappy wants to treat the President as any other man. By virtue of the office he holds, he is not. He is not above the law, but he is not below the law either. What probable cause was there to look into the outrageous claim that Mr. Trump was a Russian agent? If anything seems unconstitutional to me it is those secretive FISA courts, as well as this Special Prosecutor BS. Both Rod Rosenstein and Robert Mueller are pond scum.

    Mr. Trump was elected to the highest office in the land to do a job, to the best of his ability, for the American people as a whole. No one else is elected by the country at large. He has been prohibited from doing so by an all-powerful unelected Deep State, which has been out to get him since the day he was elected. The rest of the world is laughing at us. Personally, I’m crying for what has become of my country.

    By reducing everything to obscure legalese, Judge Nappy ignores the big picture, and has sided with the enemy. I’m making a promise to myself to never waste my time reading him again.

  5. buckwheat says:

    Napolitano is doing his best imitation of an irritating pimple on Trump’s ass. Give it a few months and he’ll be back standing at the front of the line to give out free BJ’s to anybody who will listen to his nonsense.

  6. MrTuvok says:

    It is sad to see how he has turned out to be a great shill for the corrupt forces at the FBI and the DOJ. You can see already in the title where he is going with his article. He is working in tandem with very destructive forces. I am very disappointed in him.

  7. Anon[376] • Disclaimer says:

    “The COINTELPRO has also, in recent years (especially since 9-11), recruited larger numbers of amateurs, in the form of snitches, stooges and lackeys of government agents. Organized stalking (including cyber-stalking); harassment; slander and libel campaigns against targets; identity theft and the like, by civilians and amateurs have become commonplace.

    These amateurs are usually ‘wanna-bes’ (law-enforcement, intelligence, military, etc. groupies and camp followers) who are exploited by the government operatives as “cheap labor”. Some (criminals) have made deals with agencies of the government to avoid arrest and prosecution, or to get out of jail.

    Among them are psychopaths; drug addicts/dealers; sexual perverts/predators; and severely mentally ill (criminally insane) persons who get a thrill from invading privacy; fabricating lies about targets; and generally doing harm in any way possible to others. Since they’ve got government back-up for their criminal activities (and are usually ‘deniable’) they continue their violations of human rights with impunity. “”

    From : Barbara Hartwell Vs. CIA

    COINTELPRO: FBI Domestic Intelligence Activities
    COINTELPRO: Destroying Lives One by One
    COINTELPRO Tactics to Neutralize Targets
    COINTELPRO & PSY WAR: A Tactical Analysis
    COINTELPRO Government Disinformation Campaign
    COINTELPRO Tactics: Excerpt from Open Letter to Rick Stanley
    Journalists Expose COINTELPRO Perps
    COINTELPRO Revisited: Part One
    COINTELPRO Revisited: Targeted for Neutralization (Part Two)
    COINTELPRO Revisited: Targeted by a Legion of Liars

    • Replies: @JLK
  8. Anon[376] • Disclaimer says:

    The COMEY Effect by FBI Whistleblower Geral Sosbee

    “This report by former FBI agent Geral Sosbee (July, 2017) was one I bookmarked for future publication. Now, Comey is once again in the spotlight, his many lies and crimes exposed for all to see. The FACTS are out there. The EVIDENCE is out there. The question is, will anyone listen?

    If you have swallowed the propaganda promoted by the left-wing mainstream media, who embrace Police State Tyranny, and who support its most despicable proponents, working for the destruction of this nation, its sovereignty and the rule of law, such as career criminals Hillary Clinton, Barack Hussein Obama and their Neo-Bolshevik followers, please PAY ATTENTION to the truth of what is stated here.

    Barbara Hartwell Vs. CIA

    December 11, 2018

    The COMEY Effect

    This short, but meaningful report shows how the psychopaths of fbi/cia engage in gratuitous atrocities when their crimes are made public.

    James Brien Comey Jr. , an attorney and 15 years my junior, has in his lifetime shown how a traitor is born and nourished in the USA. He has not in truth ever served this nation, but is instrumental in destroying it.

    Appropriately, as he switched from a staunch Republican to now as traitor to the US, he calls himself an independent. He, like all of his thuggish predecessors in the fbi & cia directorates, prove that his psychopathic character rules in USA. I know him and his fellow assassins in fbi far more than I care to because that group of homicidal fools hijacked my life 30 years ago and continue to this moment their dirty vendetta in failed efforts to silence me.

    Comey makes no pretense to hide his arrogance, nor to obscure his trademark condescending personality. After all a murderous tyrant in power never needs to show respect toward those he imprisons, tortures and kills.

    He treats his subjects (the entire U.S. population) as inferior idiots.

    He knows that no one in Congress, nor SCOTUS can stop his juggernaut of crime and subversion now underway to convert (and *overthrow) the constitutional republic here into a full fledged fascist state ruled by the intelligence community.

    The USA is alas in the hands of unrelenting traitors in fbi/cia and no one, not even brave President Trump, can stop them. Comey and fbi leave this legacy:

    Comey and his fbi rot the soul of our nation, work secretly and unknown in the night to undermine the pillars of democracy, and they infect the body politic so that it can no longer resist.”

  9. JLK says:

    “The COINTELPRO has also, in recent years (especially since 9-11), recruited larger numbers of amateurs, in the form of snitches, stooges and lackeys of government agents. Organized stalking (including cyber-stalking); harassment; slander and libel campaigns against targets; identity theft and the like, by civilians and amateurs have become commonplace.

    A lot of this activity could be private security. Government agencies do not have unlimited budgets. Private security people can push the envelope and create the illusion that they are more official than they really are.

  10. Can the FBI investigate the president? In a word: Yes.

    No, Duh. The FBI can do anything it can get away with.

    They can investigate Martin Luther King, you, me, or anybody’s brother-in-law. They can keep incriminating files on JFK or other politicians and use the intelligence to screw them “six ways to Sunday” as Chuck Schumer “gaffed” (A gaffe being “accidentally telling the truth.”) They can frame people, lay perjury traps, or just ruin the life of an innocent person by an indictment alone, which they will never have to prove up. They can also selectively leak damaging information (or disinformation) to the press or the opposition party to get what they want. They can spy on the Legislative committees responsible for their oversight.

    According to Judge Nappolitano (henceforth, “JNap”), the FBI’s awesome power to destroy is limited due to it’s own vague and highly flexible “guidelines” about how it will voluntarily chose to behave in most circumstances. How stupid do you have to be to think this is a real limit.

    The fact is, the FBI is part of the executive branch. The only realistic, Constitutional check on the FBI’s abuse of power is thus supervision by the head of the executive branch — the elected President of the United States, who will ultimately be held accountable for its actions.

    But according to JNap, there is nothing wrong with the FBI investigating and retaliating against the very person responsible for its oversight, or doing so precisely because he attempted to rein in FBI abuses by getting rid of its incompetent, self-serving, politised rogue leader (Comey).

    It’s exactly like saying that military intelligence should have investigated and leaked information about Truman being a traitor because he fired General MacCarthur. But JNap sees no problem.

    JNap is really a terrible pundit. He is an anti-Trump hack. But even that would be okay if his opinions were based on any kind of insightful legal analysis.

  11. @anonymous

    Several other commenters and I have noted that since about November 2017, Mr. Napolitano has been dissembling and otherwise propagandizing for the Establishment on RussiaGate.

    One has to remember that to most of its practitioners punditry is just a career opportunity. They will therefore position themselves to meet whatever consumer demand yields the most exposure for purposes of getting TV gigs and book promotion in “respectable” (MSM) outlets.

    Currently, anti-Trump confirmation bias pays best.

Current Commenter

Leave a Reply - Comments on articles more than two weeks old will be judged much more strictly on quality and tone

 Remember My InformationWhy?
 Email Replies to my Comment
Submitted comments have been licensed to The Unz Review and may be republished elsewhere at the sole discretion of the latter
Subscribe to This Comment Thread via RSS Subscribe to All Andrew Napolitano Comments via RSS
The unspoken statistical reality of urban crime over the last quarter century.
Talk TV sensationalists and axe-grinding ideologues have fallen for a myth of immigrant lawlessness.
Which superpower is more threatened by its “extractive elites”?
How a Young Syndicate Lawyer from Chicago Earned a Fortune Looting the Property of the Japanese-Americans, then Lived...
Becker update V1.3.2